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“Strange behavior” or racial discrimination?

As the cliché goes, there are two sides to every story. In Nichols v. Michigan City Plant Planning Dept., the plaintiff filed a complaint alleging that his former employer had violated Title VII by requiring him to work in a hostile work environment and then firing him because of his race. The employer told a dif- ferent tale.

Conflicting accounts

The plaintiff was an African-American male who had been hired as a temporary, substitute janitor in an ele- mentary school. He claimed that a female co-worker had:

Made racial slurs toward him,

Acted scared of him by raising a towel and waving her hand, and

Conspired with other employees to bait him into steal- ing items from an unattended purse.

He also alleged that, when he asked other co-workers for help, they wouldn’t assist him and would talk to him in a mocking manner. He claimed they stared at him dur- ing lunch and, after he’d taken out the trash, one of his co-workers put more garbage on the floor.

A month after he was hired, the female co-worker in question filed a complaint against him, alleging that he’d attempted to take photos of her. The principal of the school met with the plaintiff regarding the report. The plaintiff confirmed that he had taken photos, but that he had done so to catch his co-worker mistreating him.

Later, the principal met with the plaintiff’s supervisors and told them that she and his co-worker felt threatened by the plaintiff’s “strange behavior.” The supervisors decided to remove the plaintiff from his assignment at the school, telling him he’d receive a phone call if they needed him. The plaintiff alleged that they never called him and he was terminated because of his race.

The district court granted the employer’s motion for sum- mary judgment, finding that the employer’s conduct didn’t give rise to Title VII liability. The plaintiff appealed.

Lacking evidence

The U.S. Court of Appeals for the Seventh Circuit affirmed. The appellate court found that the employee’s hostile work environment claim failed because he didn’t provide sufficient evidence for a reasonable juror to con- clude that he was subjected to harassing conduct that was severe or pervasive.

The employee argued that his co-worker’s alleged racial slurs constituted severe harassment. The Seventh Circuit explained that, when determining whether conduct is sufficiently severe or pervasive, it looks at the totality of circumstances. This includes the frequency of the discrimi- natory conduct, as well as whether it’s:

Reasonably offensive,

Physically threatening as opposed to verbal abuse,

Certain to unreasonably interfere with the plaintiff’s work performance, and

Directed at the plaintiff.

The court stated that, “while referring to colleagues with such disrespectful language is deplorable and has no place in the workforce, one utterance of [a notorious racial slur] has not generally been held to be severe enough to rise to the level of establishing liability.”

Examining context

Although there were six alleged instances of harassment over a two and one-half week period, it wasn’t clear whether all of the comments were directed at the plaintiff or offensive enough in nature to constitute actionable conduct.

The Seventh Circuit pointed out that the context of the comments is important. For example, an employee saying “where that boy at” in an elementary school filled with boys isn’t necessarily evidence of racial discrimination. The court also stated that, just because someone left a purse behind, it couldn’t reasonably hold that this action was intended to entice the plaintiff into thievery.

Moreover, the plaintiff never alleged that he was physi- cally threatened, and the alleged harassment didn’t inter- fere with his work performance. Therefore, the Seventh Circuit found that, taking into account the totality of circumstances, a reasonable trier of fact couldn’t find that the alleged instances created a hostile work environment.

Providing proof

Regarding the plaintiff’s claim that he was terminated because of his race, the Seventh Circuit also affirmed the district court’s decision.

The appellate court found that the employer provided suf- ficient evidence that the plaintiff was terminated because co-workers reported that he was acting strangely on the day of his termination and they were scared. As a result of the staff’s concerns, the principal spoke to the plain- tiff’s supervisors, who decided it was best to remove the plaintiff from his position.

The employer also provided sufficient proof that the plaintiff was going to be terminated the next week — regardless of job performance — because the school had hired a permanent employee for his position and a tem- porary worker was no longer needed. Finally, the Seventh Circuit held that the plaintiff had failed to present evi- dence of a comparative co-worker who had been treated more favorably than he had been to show disparate treat- ment in his termination from the temporary position.

Fending off a claim

Should your organization ever find itself fending off a racial discrimination lawsuit, this case illustrates some key weak- nesses to look for in a plaintiff’s claim. A plaintiff who relies on speculation, assumptions — and a distinct lack of actual evidence — will not likely see his or her claim with- stand your motion for summary judgment.

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